The latest buzz in employment is telecommuting. This alternative work arrangement-employees working at home or having the ability to connect to their company electronically (by telephone, computer, modem, fax or email) from any location-has created the need for employers and government bodies to consider the work standards and liabilities that are involved.

However, according to our latest HRinfodesk Poll that asked respondents if telecommuting was permitted in their company, 65% of respondents stated that telecommuting was not permitted. This falls in line with the latest Statistics Canada report on telecommuting which indicates that despite significant improvements in the infrastructure, the fall-off in telework popularity has been pervasive. The strong growth of telework in the 1990s seems to have stalled since the turn of the century. The report suggests an increase in onsite day cares, and new technologies such as laptops, mobile phones, and BlackBerrys may have helped employees resist the allure of working from home. In addition, the growing proliferation of communication centres may facilitate work from many other places, such as cars, airports, railway and bus terminals, and satellite offices. The report also states that following the September 11, 2001 terrorist attacks, some companies have tightened up their information networks and security measures, forcing more workers to come to the office.

According to information culled from the 2000 and 2005 General Social Survey by Statistics Canada, the number of employees who worked from home grew from one million in 1995 to 1.4 million in 2000. But by 2005, the number dipped to 1.3 million.

Here are the results of our poll on the topic:

Does your company allow workers to telecommute?

This commentary will provide an overview on the topic of telecommuting, the advantages/disadvantages, legal requirements and best practices.

What is telework/telecommuting?

Telework/telecommuting is a work arrangement in which employees enjoy limited flexibility in working location and hours. In other words, it is an alternative work arrangement for employees to conduct all or some of their work away from the primary workplace. The work location might be a residence or a satellite office (an office closer to the employee's residence or another acceptable location) conducive to accomplishing work requirements. The focus should be on providing worksites at locations that reduce employees' commuting time and inconvenience while allowing employees to accomplish their work effectively.

According to InnoVisions Canadian Telework Association, “Telework occurs where paid workers work away from their normal place of work, usually from home. Such workers can telework all their work time, or on an occasional or ad-hoc basis. Most telework takes place a day or two per week.”

"Most people have not clued in yet," said InnoVisions president Bob Fortier, noting that the lion's share of Canada's 1.8 million teleworkers work for larger, office-based companies. One of the main barriers to implementing telework, according to Mr. Fortier, is the misconception that working from home is synonymous with slacking off. Another problem is what Dr. Fortier calls "Jurassic" managers who “like the idea of having their employees around them."

Legal requirements

More companies are making telecommuting, work-from-home policies and virtual offices a common part of their staffing practices. Teleworkers are covered under Employment/Labour Standards legislation, but New Brunswick is the only province to include telecommuting within the Employment Standards Act (ESA) to cover this form of work arrangement. For example, work hours and overtime provisions found in the ESA apply to teleworkers as well.

Employers must realize that employment and labour standards still apply to these employees. For example, employers will still be obligated to pay these types of employees' overtime even if the employer has not authorized it and previously made it clear to at-home/virtual office employees that their job is to be limited to straight time only.

Common law defines telecommuting as any arrangement in which an employee regularly performs officially assigned duties at home or other worksites geographically convenient to the residence of the employee; and eligible employee is defined in common law as any satisfactorily performing employee of an organization whose job may typically be performed at least one day per week at an alternative workplace.

Whether Occupational Health and Safety legislation applies to these alternative work arrangements is fast becoming an issue. In general, health and safety legislation applies to all employees performing work for the employer, including teleworkers. However, this gives rise to questions like: what is the employer's liability for accidents that occur in other areas of the house during coffee breaks or lunch? Or, what is the employer's liability for ensuring the ergonomic viability of the home office and who is responsible for injuries that result from inadequate office furniture? Where does the office begin and end?

British Columbia and New Brunswick are the only provinces that clearly extend employer health and safety responsibility to home offices. The legislation in other provinces is unclear as to liability and compensation.

The Canadian Centre for Occupational Health and Safety's OSH Answers: Telework / Telecommuting (in PDF) at www.hrinfodesk.com/Articles/oshanswersteleworkccohs.pdf provides valuable information on health and safety issues surrounding a telework arrangement including an example of a checklist for teleworking policies.

Advantages and disadvantages

Telecommuting or working at home arrangements has both advantages and disadvantages. For the employee, this arrangement allows more flexibility to schedule activities; makes it easier to balance work and personal or family demands; reduces expenses for transportation, clothing and food; and cuts commuting time. On the negative side, working at home may reduce one's social circle, stifle career advancement, or even increase workload.

For the employer, telecommuting or a work-from-home arrangement may increase employee productivity, reduce expenses for work space, improve recruitment and retention of employees, and reduce absenteeism. Among the most commonly cited disadvantages are problems related to coordination and communication, lack of control over quality of work, and problems associated with information security.

Best practices

Telework should be used as a benefit that allows your best employees the flexibility to work wherever and whenever it makes sense. For example, when there are unexpected work demands, snow storms, deadlines, or if an employee must take care of a sick family member. Organizations must define and set parameters for all telework arrangements. Studies show that clear guidance and direction increase the chances of success for telework programs.

Organizations of many kinds, including large corporations, the government, small businesses and non-profit organizations, have found that home-based telework is a human resource tool that offers new opportunities to:

Accommodate existing employees who have disabilities,

Retain existing employees who develop disabilities, and

Attract and recruit new employees from a larger, more diverse pool of job seekers.

Providing the telework option allows employers to accommodate and retain employees with disabilities whose only other alternatives to work may be long-term disability benefits, early retirement, or unemployment. Home-based work can also prevent employers from losing valued employees to competitors who provide more flexible work arrangements.

Telecommuting policies

To ensure employers have a handle on what goes on in home offices or virtual offices, and to reduce the likelihood of surprise overtime claims, employers should have telecommuting policies which include the following:

Give employees explicit written directions not to work more than the weekly-legislated hours of work. If they need to work more, employees must receive prior written approval from a supervisor.

Establish and enforce methods for monitoring work done at home. Have a system that allows employees to self-report or certify in writing the hours they work each week that proves hours worked.

Educate managers, supervisors and employees on balancing production needs with overtime considerations.

Consider that time spent at a home office performing preliminary and follow-up work for the employer also counts as hours worked.

Apply health and safety laws to home offices, especially when it comes to work-related equipment and workspace practices. Impose strict reporting requirements on all injuries, and request specific information about how the injury occurred.

Minimize exposure to third-party claims. Both negligent and intentional acts by employees working from home that harm a third party can potentially expose employers to liability

Implementing telework

A good telework policy lays the groundwork for successful telework arrangements for persons with and without disabilities. If your organization doesn't have an established telework policy, it's a good time to develop one. If your organization already has a telework policy, you can devote more of your attention to the planning required for the successful implementation of individual telework requests.

Many factors can affect the success of a telework arrangement, including the employee, the job, the manager, co-workers, and the organization's information technology. These and other organizational factors may also be affected when one or more employees work at home. Careful planning provides the foundation for maximizing successes and minimizing challenges.

In addition, it is a best practice to treat a home-based employee with a disability in the same manner that you treat any home-based employee.

A written telework agreement jointly developed by employees and the employer (and union representative, where appropriate) establishes common understandings, expectations and responsibilities. Some elements a telework agreement should include are:

Employers should review their health and safety and minimum work standard policies to help employees minimize problems and stay ahead of evolutionary legislation. For current business practices on telework, check the InnoVisions Canada / Canadian Telework Association website at www.ivc.ca/.

HRinfodesk is an information and news service that is published by First Reference, which includes employment law news for every jurisdiction in Canada, a Library of Articles, FAQs, a Calendar of Events, Important Dates and an HR Internet Directory for expanded research. Our search tools will help you to quickly find results by jurisdiction, topic, date, keyword and article number. For the latest employment law news and a ten day trial, click here.

First Reference is a publisher of Canadian employment law, finance and accounting reference manuals that are comprehensive, updated and practical. Publications include The Human Resources Advisor, Human Resources PolicyPro, Finance & Accounting PolicyPro and the HRinfodesk online information and news service (Bulletin and website). For more information or to purchase one of our publications, go to www.firstreference.com.

This article offers general comments on legal developments of concern to businesses. Every effort has been made to ensure the accuracy and timeliness of this information. These publications are written for informational purposes only and should NOT be relied upon as legal advice or opinions. The reader should always obtain legal advice from a qualified lawyer or other qualified professional, which will be responsive to the case or circumstance of the individual. Please note that the content provided in this article or any content contained in or made available through any third party website linked to from this article and/or HRinfodesk, is provided 'as is' without representations or warranties of any kind. All representations and warranties in respect of Content or Third Party Content, express or implied, including, without limitation any representations to warranties or conditions regarding accuracy, timeliness, completeness, non-infringement, merchantability or fitness for any particular purpose are hereby disclaimed.